COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
CALEB HERRERA MUNOZ, § No. 08-23-00084-CR
Appellant, § Appeal from the
v. § 39th Judicial District Court
THE STATE OF TEXAS, § of Throckmorton County, Texas
Appellee. § (TC# 1302)
§
MEMORANDUM OPINION
Appellant Caleb Herrera Munoz was convicted by a jury of possession with the intent to
deliver a controlled substance, namely methamphetamine, in an aggregate weight of 4 grams or
more but less than 200 grams. He was sentenced to confinement in the Institutional Division of
the Texas Department of Criminal Justice for 87½ years and was fined $10,000. In his sole issue
on appeal, Appellant challenges the sufficiency of the evidence to support the element of “intent
to deliver.” For the following reasons, we affirm.
STATEMENT OF FACTS
Throckmorton County Sheriff Doc Wigington (the Sheriff), responded to a reckless driving
call and identified Appellant, who was stopped on a roadway facing a private driveway. The Sheriff approached Appellant while Appellant “was messing with his tire” and asked him for his
driver’s license. Appellant stated he did not have a license. The Sheriff then asked Appellant for
his name and date of birth. As the Sheriff searched the state database using the name and birthdate
Appellant provided, Appellant re-entered his vehicle. The database yielded no results for the name
and birthdate Appellant provided, so the Sheriff asked Appellant for another form of identification,
whereupon Appellant “put the car in drive” and drove up the private driveway through a barbwire
fence on the west side of the property. The Sheriff chased Appellant in his patrol vehicle until
Appellant drove the car into a water gully, exited the vehicle, and proceeded on foot. Eventually,
Appellant stopped behind a tank dam and was instructed not to move. Ignoring the instructions,
Appellant fled on foot once more until he became stuck in thick mud, allowing the Sheriff to take
him into custody. The vehicle Appellant had been driving was towed to the Sheriff’s office and
inventoried.
At trial, the Sheriff testified that the location where Appellant was arrested was private
property, characterized as pastureland and surrounded by barbwire. He testified that he learned
from another deputy’s inventory report that the vehicle Appellant had been driving contained
ammunition. Based on this information, the Sheriff called for a Texas Parks and Wildlife
Department K-9 in hopes of having the K-9 detect evidence at the scene where Appellant was
arrested. 1 Derek Nalls, the K-9 handler, testified about the training and procedures he and the K-
9 follow to prepare for and conduct a search. He detailed the search they conducted in this case,
1 The court sustained a motion in limine as to testimony from the Sheriff that any evidence found by the K-9 conclusively came from Appellant. The State’s theory is based on circumstantial evidence that links Appellant to the dropped items found in the area where the chase occurred and where Appellant was arrested. The fact that the area was vacant pastureland further linked Appellant to the dropped items. On appeal, Appellant does not challenge the jury’s finding that he possessed the methamphetamine.
2 which took place the day after Appellant’s apprehension at the location where Appellant led the
Sheriff on the chase. During the search, the K-9 discovered a black baseball cap that resembled
the cap Appellant was wearing during the chase and a pack containing a clear plastic bag. Inside
the clear bag was what was later determined to be methamphetamine. Christina Coucke-Garza, the
forensic chemist who conducted the analysis of the substance inside the clear bag, confirmed that
the substance amounted to 52.369 grams of methamphetamine.
The Sheriff searched the vehicle pursuant to a search warrant, which he obtained a few
days after apprehending Appellant. He testified that the search revealed a small amount, less than
a gram, of methamphetamine in a cellophane package. The Sheriff further testified that in the
vehicle, he also found a vape, a marijuana grinder, a torch lighter, small rolling papers, and a small
bag of “what . . . appeared to be . . . cocaine,” although it was not tested for verification.
Over Appellant’s objection, the Sheriff was designated as an expert witness, and he
testified that throughout his career, he had handled over 500 narcotics investigations. 2 He testified
that in his experience, he has seen cases involving possession of methamphetamine for personal
use in amounts ranging anywhere from less than a gram to less than 200 grams. Of those cases in
Throckmorton County, he testified that a “large percentage” involve just under a gram of
methamphetamine. The State argued in closing that based on this evidence, the quantity of
methamphetamine Appellant possessed was inconsistent with personal use, as it was over 52 times
the amount normally found in personal-use cases in Throckmorton County. Further, the State cited
Appellant’s possession of drug paraphernalia in the vehicle and his consciousness of guilt—
2 While Appellant objected to the Sheriff’s designation as an expert witness in so far as he might be considered a personal-drug-use expert, he did not take issue with the Sheriff’s ability to testify to his experience in narcotics investigations and arrests in terms of general drug quantities, e.g., “When I’m dealing with someone that has, you know, a hit of methamphetamine, it’s generally in this weight range.” In other words, Appellant’s (running) objection was to the Sheriff extrapolating about personal use from the information about which he was competent to testify.
3 evinced by the false identification he provided the Sheriff and his decision to flee from the Sheriff
to dispose of the methamphetamine in vacant pastureland—to support a finding that Appellant
possessed the methamphetamine with the intent to deliver.
The jury returned a verdict against Appellant and assessed punishment of confinement in
the Institutional Division of the Texas Department of Criminal Justice for 87½ years and a fine of
$10,000. Appellant’s sole issue on appeal is that there was insufficient evidence from which a
rational jury could have inferred Appellant’s intent to deliver methamphetamine. He argues the
jury’s verdict is unfounded, as there is no evidence that Appellant is a known drug dealer or that
he was arrested in an area known for its drug activity. Additionally, Appellant argues that the
methamphetamine recovered from the scene of the chase was not packaged in a manner consistent
with resale, as it was all in a single bag as opposed to several bags, and the State’s expert’s
testimony is inadequate to support the inference that the methamphetamine was intended for
delivery. Finally, there were no devices recovered from the vehicle that are commonly associated
with a drug dealer’s trade—such as scales, ledgers, wads of cash, etc.—and the drug paraphernalia
that was recovered indicated only that Appellant was a user and not a distributor of drugs.
STANDARD OF REVIEW AND APPLICABLE LAW
The Fourteenth Amendment’s due-process guarantee requires that legally sufficient
evidence support every conviction. See Jackson v. Virginia, 443 U.S. 307, 315–16 (1979); Brooks
v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In a legal-sufficiency challenge, we focus
solely on whether the evidence, when viewed in the light most favorable to the verdict, would
permit any rational fact-finder to find the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 318–19; Brooks, 323 S.W.3d at 912 (establishing legal sufficiency
under Jackson v. Virginia as the only standard for review of the evidence).
4 Applying that standard, we recognize the fact-finder as the sole arbiter of witness
credibility and the weight attached to witness testimony. Metcalf v. State, 597 S.W.3d 847, 855
(Tex. Crim. App. 2020); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Only the
fact-finder acts “to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007) (quoting Jackson, 443 U.S. at 319). In doing so, the fact-finder may choose
to believe or disbelieve any testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App.
2008). When the record supports conflicting inferences, we presume that the fact-finder resolved
the conflicts in favor of the verdict and defer to that determination. Dobbs, 434 S.W.3d at 170
(citing Jackson, 443 U.S. at 319). In conducting a legal-sufficiency review, “[w]e are not to sit as
a thirteenth juror reweighing the evidence or deciding whether we believe the evidence established
the element in contention beyond a reasonable doubt[.]” Blankenship v. State, 780 S.W.2d 198,
207 (Tex. Crim. App. 1988) (en banc). Instead, “we test the evidence to see if it is at least
conclusive enough for a reasonable fact-finder to believe based on the evidence that the element
is established beyond a reasonable doubt.” Id. (quoting Jackson, 443 U.S. at 318).
In reviewing the legal sufficiency of the evidence, “[c]ircumstantial evidence and direct
evidence are equally probative, and either one alone can be sufficient to establish guilt.” Ratliff v.
State, 663 S.W.3d 106, 113 (Tex. Crim. App. 2022). “In circumstantial evidence cases, it is not
necessary that every fact and circumstance point directly and independently to the defendant’s
guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the
incriminating circumstances.” Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013)
(citation and internal quotation marks omitted).
5 Appellant challenges his conviction of possession with the intent deliver methamphetamine
in an amount of 4 grams or more but less than 200 grams, arguing the evidence is insufficient to
establish his intent to deliver. In Texas, a person commits the crime of possession with the intent
to deliver a controlled substance when he or she knowingly or intentionally possesses the
controlled substance with the intent to “deliver” it, i.e., to transfer the controlled substance, actually
or constructively, to another. TEX. HEALTH & SAFETY CODE ANN. § 481.002, 481.112(a). “[I]ntent
to deliver” is a question of fact for the jury, and it may be inferred by the acts, words, or conduct
of the accused. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.); Patrick
v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (en banc). The intent requirement can be
proved by circumstantial evidence, such as “the nature of the location where the defendant was
arrested, the quantity of drugs the defendant possessed, the manner of packaging the drugs, the
presence or absence of drug paraphernalia, whether the defendant possessed a large amount of
cash, and the defendant’s status as a drug user.” Hughitt v. State, 539 S.W.3d 531, 542 (Tex.
App.—Eastland 2018), aff’d, 583 S.W.3d 623 (Tex. Crim. App. 2019). Moreover, intent to deliver
can be established by the expert testimony of experienced law enforcement officers. Id. “The
number of factors present is not as important as the logical force the factors have in establishing
the elements of the offense.” Moreno v. State, 195 S.W.3d 321, 326 (Tex. App.—Houston [14th
Dist.] 2006, pet. ref’d). Thus, in some cases, possession of a large quantity of drugs alone can be
sufficient to prove intent to deliver if that evidence is accompanied by expert testimony that the
amount at issue is indicative of the intent to deliver. Simmons v. State, 100 S.W.3d 484, 491 (Tex.
App.—Texarkana 2003, pet. ref’d).
6 ANALYSIS
In response to Appellant’s brief, the State argues the evidence is sufficient to support the
jury’s verdict because (1) Appellant possessed a larger and smaller bag of methamphetamine,
indicating an intent to divide the larger amount into smaller amounts for resale; (2) Appellant
possessed more methamphetamine than is customary for a mere user; (3) expert testimony from
the Sheriff revealed that a “large percentage” of possession of methamphetamine cases in
Throckmorton County involve less than a gram; and (4) Appellant possessed drug paraphernalia—
namely, a marijuana grinder, a torch lighter, a vape, and rolling papers—that indicate Appellant is
a marijuana user, allowing the jury to infer that the methamphetamine was for sale and not for
personal use. We address each point in turn, viewing the evidence in a light most favorable to the
jury’s verdict, as we are required to do.
First, the State argues that evidence Appellant possessed 52.369 grams of
methamphetamine along with a smaller, separately packaged quantity is indicative of Appellant’s
intent to deliver. Courts have found that the manner of packaging is a relevant factor in determining
whether drugs were intended for delivery as opposed to mere personal consumption. E.g., Kibble
v. State, 340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). A larger quantity of
drugs packaged into smaller quantities for resale has been found to be evidence of the practice of
dealing. Hughitt, 539 S.W.3d at 542 (finding that evidence of a gallon ziplock bag with
methamphetamine residue indicated that at one time, the defendant possessed a larger amount and
was distributing it); Williams v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994,
pet. ref’d) (finding that evidence of small plastic bags used for drug packaging was indicative of
defendant’s intent to deliver). At one point in trial, the Sheriff testified without objection that when
he searched Appellant’s vehicle, he found a small amount of methamphetamine, estimated to
7 weigh about less than a gram, in a cellophane package located in the “doorjamb” area of the
vehicle. From that testimony, a jury could have reasonably inferred that Appellant’s larger and
smaller quantities of methamphetamine are indicative of Appellant’s intent to deliver rather than
personally use the 52.369 grams of the drug, as he could have intended on dividing up the larger
amount into additional smaller amounts for resale.
Moreover, courts have found that the quantity of drugs alone, when coupled with expert
testimony on the subject, can support a finding of intent to deliver. Simmons v. State, 100 S.W.3d
484, 491 (Tex. App.—Texarkana 2003, pet. ref’d). In the State’s view, Appellant possessed an
amount methamphetamine atypical for a mere user. At trial, the Sheriff testified of his over 500
narcotics investigation cases, a large percentage of the personal-use cases involve less than one
gram, which the State contrasted with the over 52 grams of the drug in Appellant’s case. The
relevant portion of the State’s direct examination of the Sheriff is as follows:
[THE STATE]: Okay. What—typically, what do you see in your training and experience when you run across methamphetamine in personal use amounts?
A. In my experience, I’ve investigated cases from less than one gram all the way up to—the typical amount is anywhere from less than one gram up to about, you know, less than 200 grams.
Q. Okay. That’s your experience of the investigations you’ve done?
A. In Throckmorton County. I have investigated cases from less than one gram all the way up to kilos.
Q. Okay. So regarding—would you have any idea how many cases you’ve dealt with that are less than a gram? What percentage of possession of methamphetamine cases you've had that are less than a gram?
[DEFENSE COUNSEL]: Objection. Relevance, Judge.
THE COURT: Mr. Fouts?
8 [THE STATE]: Judge, it’s relevant. It’s a drug case we are talking about.
THE COURT: The Court’s going to overrule the objection. You can answer the question.
A. I would say a large percentage of the cases in Throckmorton County are less than one gram.
Appellant argues this testimony was “inadequate, if even relevant” on the issue of Appellant’s
intent to deliver. According to Appellant, the Sheriff’s testimony establishes only that in his
experience, he has seen “a number of different weights that had proven to be for personal use.”
Viewing this evidence in a light most favorable to the verdict, we find that the jury could have
reasonably inferred from the Sheriff’s testimony that because 52.369 grams of methamphetamine
is well over a typical case of personal-use possession in Throckmorton County, where a “large
percentage” of cases involve less than one gram, Appellant intended to deliver the drugs. 3
Additionally, a finding of defendant’s intent to deliver can be supported by the absence of
personal-use drug paraphernalia. See Sneed v. State, 406 S.W.3d 638, 642 (Tex. App.—Eastland
2013, no pet.) (finding that appellant’s conviction of possession with the intent to deliver cocaine
was supported by the expert testimony of a narcotics agent who searched the appellant and did not
find a crack pipe in his possession, which would have indicated that the appellant was a user). In
3 We further note that the State’s argument that 52.369 grams of methamphetamine exceeds the amount a mere user would possess is consistent with other cases in Texas where a lesser amount of methamphetamine was found to be to indicative of an intent to deliver. See Biggers v. State, 634 S.W.3d 244, 254 (Tex. App.—Texarkana 2021, pet. ref’d) (holding that the evidence was sufficient to support defendant’s conviction of possession of methamphetamine with intent to deliver where experts testified that 11.68 grams of methamphetamine is not a user amount but a dealer amount); Perez v. State, No. 11-02-00120-CR, 2002 WL 32344582, at *1 (Tex. App.—Eastland Nov. 21, 2002, no pet.) (not designated for publication) (holding that evidence was sufficient to support defendant’s conviction of intent to deliver methamphetamine in the amount of 11.51 grams where an expert testified that the average user only purchases half a gram or less and uses only a quarter of a gram of methamphetamine per day); Fletcher v. State, No. 11-04-00305-CR, 2006 WL 950093, at *2 (Tex. App.—Eastland Apr. 13, 2006, no pet.) (not designated for publication) (finding the evidence sufficient to support a conviction for possession of methamphetamine with the intent to deliver where the officer testified that the 4.57 grams of methamphetamine linked to defendant was too much for personal use).
9 this case, a search of the vehicle in which Appellant drove revealed that Appellant possessed a
marijuana grinder, a torch lighter, rolling papers, and a vape. On the one hand, the State argues
that the paraphernalia found in the vehicle is consistent with marijuana use, not methamphetamine
use. As such, the jury could have inferred that Appellant intended the methamphetamine for
delivery. On the other hand, Appellant avers that the torch lighter in particular is a tool used for
smoking methamphetamine, and thus suggests Appellant possessed the drug for his personal
consumption. Considering the circumstantial evidence suggesting Appellant was a drug user of
some kind, Appellant’s argument that the paraphernalia supports an inference that Appellant
personally consumed methamphetamine is a possibility—but the State was not required to
disprove every reasonable alternative hypothesis to the exclusion of Appellant’s guilt. Tate v.
State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). In light of the standard, which requires that
we defer to the jury’s judgment with respect to conflicting inferences, we can presume that the
jury considered both possibilities—that Appellant was a marijuana user and that Appellant was a
methamphetamine user—and resolved that conflict against Appellant or even discounted this point
altogether and decided the case on the other circumstantial evidence from which it could have
rationally inferred Appellant had the intent to deliver.
Lastly, Appellant cites to Justice Dauphinot’s dissent in Jordan v. State, 139 S.W.3d 723
(Tex. App.—Fort Worth 2004, no pet.) for the proposition that the ability to deliver is not the same
as the intent to deliver. According to Appellant, from the amount of methamphetamine recovered,
jurors could question Appellant’s decision to buy his supply in bulk, but “that’s a question that
could be leveled at nearly every Costco shopper.” To the extent Appellant’s argument can be
construed as saying that the evidence here is just as consistent with the intent to possess as the
intent to deliver, we reiterate that it was the responsibility of the jury to resolve conflicting
10 inferences, and here, it did so against Appellant. See Johnson v. State, 829 S.W.2d 836, 837
(Tex. App.—Dallas 1992, no pet.) (citing Matson v. State, 819 S.W.2d 839, 845 (Tex. Crim. App.
1991)) (“If conflicting inferences concerning Johnson's intent exist, this Court must presume—
even if it does not affirmatively appear in the record—that the trier of fact resolved any such
conflict in favor of the prosecution, and we must defer to that resolution.”). Appellant also avers
that the record reveals no evidence of intent to deliver because there was no evidence of drug
paraphernalia commonly associated with a drug dealer’s trade or that Appellant was a known drug
dealer. And the area where he was arrested was not known for drug activity, plus the
methamphetamine actually admitted at trial was all in one bag as opposed to being packaged in a
manner consistent with resale. 4 But in conducting a sufficiency analysis, we look not to the
number of relevant factors supporting the conviction, but to the logical force behind those factors
that are present in the case.
Because the cumulative force of the State’s evidence supports Appellant’s conviction, we
will not overturn the jury’s verdict solely because evidence of the specific factors to which
Appellant points was absent in this case. Taken together—i.e., the 52.369 grams of
methamphetamine; the Sheriff’s testimony concerning the quantity of methamphetamine that
typifies a “large percentage” of personal-use possession cases in Throckmorton County, coupled
with the fact that Appellant possessed far more than 52 times that amount; the Sheriff’s testimony
that he found a smaller cellophane package of methamphetamine in the vehicle; and the fact that
one piece of the drug paraphernalia found in Appellant’s car was just as consistent with marijuana
4 While at one point, Appellant did not object when the Sheriff testified as to the smaller cellophane packaging of methamphetamine he found in the vehicle, Appellant did object when the State attempted to admit the smaller bag into evidence. At that juncture, Appellant argued his objection that the Sheriff lacked the qualifications to say with any certainty that the substance found in the vehicle was methamphetamine. The State moved on without admitting the evidence.
11 use as it was with methamphetamine use—the record contains sufficient evidence to support the
jury’s finding beyond a reasonable doubt that Appellant intended to deliver, rather than merely
possess, methamphetamine in the amount of 52.369 grams. Accordingly, we overrule Appellant’s
sole issue.
CONCLUSION Because we find that the evidence was sufficient to support the jury’s verdict, we affirm.
LISA J. SOTO, Justice
September 28, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.
(Do Not Publish)